[2023] UGHC 27

## The Republic of Uganda

In The High Court of Uganda Holden at Soroti

# Miscellaneous Application No. 0036 of 2019

(Arising from Civil Suit No. 0013 of 2014 in the Chief Magistrates Court of Kumi holden at Kumi)

10 1. Attorney General

$\mathsf{S}$

2. Gasper Onzi Obingu ::::::::::::::::::::::::::::::::::::

### Versus

Okwi Richard ::::::::::::::::::::::::::::::::::::

Before: Hon. Dr. Justice Henry Peter Adonyo:

## **Ruling:**

This an application brought by way of notice of motion under Sections 79, 96 and 98 of the Civil Procedure Act and Order 51 Civil Procure Rules for leave to be granted to file an appeal out of time and that the costs of the application be provided for.

The grounds of the application as set out in the application and supporting affidavit sworn by State Attorney Topacho Juliet are briefly that;

The applicants were represented by the Attorney General's Chambers in Civil Suit 0013 of 2014 and were never served with judgment notices

by court and this resulted in them being unaware of the date when the judgment was delivered.

The Attorney General's Chambers only got to know of the judgment when served with a bill of costs and taxation hearing notice. When the applicants were finally made aware of the judgment they discovered

that there was need to appeal as the judgment was unfair with omissions and errors however, by then the time within which to file an appeal had expired.

That non-service of judgment notices deprived the applicants of the right to appeal within the prescribed time yet the applicants have sufficient grounds for appeal against the whole decision in Civil Suit No. 13 of 2014 and denial of this application will occasion miscarriage of justice to the applicants.

In the affidavit in reply the respondent stated that the applicants without giving any reason to court never came back for further hearing, he indicates the various dates when the suit came up for hearing or mention with the applicants absent.

He further states that the applicants were aware of the proceedings given the fact that they gave evidence in court and what was remaining was the judgment. That they were aware of the date of judgment as they were served with the judgment date. That the application has been brought over 9 months from the date the judgment was delivered indicating that the applicants intention was to delay the matter in court so as to deny the respondent justice. That accordingly this court should find that this application has no merit and as such should be dismissed with costs.

#### Submissions: 25

Counsel for the applicant submitted that in an application for enlargement of time to file an appeal out of time court ordinarily grants leave unless the applicant has not presented a reasonable explanation for his delay. Counsel further stated that it would be wrong to shut an applicant out of court and deny him/her the right of appeal unless it can fairly be said that his or her action was in the circumstances, inexcusable and his/her opponent was prejudiced by it.


$10$

$\mathsf{S}$

Counsel further submitted that the applicants lacked knowledge on when $\mathsf{S}$ the judgment was delivered in CS No. 0013 of 2014 and upon discovering that the judgement had been delivered, the appeal period had expired, which was a just cause to apply for leave to appeal out of time.

Counsel for the respondent M/s Omongole & Co. Advocates submitted that it is the cardinal principle of the law that justice shall not be delayed per Articles $126(2)(b)$ and 28 of the Constitution.

Counsel further submitted that a careful review of the record of proceedings shows that the defendants/applicants were absent from court proceedings most of the time and it was because of this that a matter which was filed in 2014 was disposed of in 2018, which was a period of over four

(4) years and that allowing them to file an appeal out of time would amount to the abuse of court process.

Counsel contended that the applicants were aware of the judgment date and elected to absent themselves from court.

Counsel further submitted that the fact that the applicant brought this 20 application seven month after the date they claim to have known of the judgement, is a testament to the respondent's contention that this application is indeed an abuse of court process and an afterthought on the part of the applicants especially since no explanation has been given for the inordinate delay. In making this assertion, Counsel relied on 25 Rossette Kizito v Administrator General and Others SCCA No. 09 of 1986 [1993] 5 KALR, where inordinate delay was considered when declining an application.

Counsel additionally submitted that allowing the applicant to file the appeal four (4) years after the delivery of the judgement without sufficient 30

cause being shown will in the circumstances inconvenience the $\mathsf{S}$ respondent whose enforcement of the decree will be delayed.

Counsel submitted that the rules of procedure entail and regulate timelines of procedural action for purposes of redressing the abnormality of delays in litigation so as to facilitate the timely and final resolution of disputes.

Counsel relied on *Muzamil Ayile v Rose Tarakpe & 6 Ors MA 0024* of $2013$ where it was held that it is a constitutional imperative that litigants should know with finality and within reasonable time the court's decisions on claims brought before courts, parties should not be held captive to endless litigation.

Counsel also relied on *Mukwano Industries Ltd v Katushabe &* Another MA 853 of 2019 where it was held that litigation ought to come to an end otherwise endless applications make it costly to the litigants in the long run.

- Counsel finally submitted that considering the history of this case which 20 arose from an unlawful arrest and detention and malicious damage to property as well as the dilatory conduct of the applicant during the prosecution of the case in the lower court, it is in the interest of justice that this litigation comes to an end by rejecting this application. - In rejoinder counsel for the applicant reiterated that the applicant could 25 not file an appeal when he was not aware of the judgment and orders of trial court.

Counsel stated that the submission by counsel for the respondent that the applicant caused the delay in hearing the case in Magistrate's court was a

lie amounting to giving evidence at the bar and such a submission is aimed 30 at denying the applicant to access justice on Appeal.

With regard to the length it took to file this application counsel submitted $\mathsf{S}$ that before the instant application could be filed in High court, there was need to peruse the court record and analyze the judgment and share with the applicant/client and this took long due to distance and costs involved.

Counsel further submitted that in an application for extension of time to Appeal/leave to appeal out of time, court balances considerations of 10 access to justice on the one hand and the desire to have finality to litigation on the other.

That this application was aimed at accessing justice, counsel relied on Banco Arabe Espanol Vs Bank of Uganda 199 2 EA 22 where the Supreme Court held that;

"... Administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors or lapses should *not necessarily debar a litigant from the pursuit of his* rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered"

Accordingly, counsel for the applicants prayed that this application be 25 allowed.

Determination:

This application is brought under Section 79(1)(a) of the Civil **Procedure Act** which provides that;

Except as otherwise specifically provided in any other law, every appeal 30 shall be entered—

within thirty days of the date of the decree or order of the court; or $(a)$

$(b)$ $\cdots\cdots\cdots\cdots\cdots\cdots\cdots$

$\mathsf{S}$

as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

10 The legal position in regard to an application of this nature is that an application for an order for enlargement of time to file the appeal should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of the Court, has not presented a reasonable explanation of his failure to file the appeal within the time prescribed by Act, or where the extension will be prejudicial to the 15 respondent or the Court is otherwise satisfied that the intended appeal is not an arguable one.

It would thus be wrong to shut an applicant out of court and deny him or her the right of appeal unless it can fairly be said that his or her action was in the circumstances inexcusable and his or her opponent was prejudiced by it.

It has been held that in an application of this nature, the court must balance considerations of access to justice on the one hand and the desire to have finality to litigation on the other.

When an application is made for enlargement of time, good cause showing 25 that justice warrants such an extension must be proved by the applicant before court can exercise its discretionary powers and grant the extension. The above legal requirements were re-echoed in *Tight Security Ltd v*.

Chartis Uganda Insurance Company Limited and another

H. C. Misc Application No 8 of 2014 where it was held that for an 30 application of this kind to be allowed, the applicant must show good cause. "Good cause" that justifies the grant of applications of this nature has $\mathsf{S}$ been the subject of several decisions of courts and these include; *Mugo* v. Wanjiri [1970] EA 481 and Pinnacle Projects Limited V. Business In Motion Consultants Limited, H. C. Misc. Appl. No 362 of 2010, where it was held that the sufficient reason must relate to the inability or failure to take a particular step in time. 10

Other similar cases include those of **Roussos v. Gulam Hussein** Habib Virani, Nasmudin Habib Virani, S. C. Civil Appeal No. 9 of 1993 in which it was decided that a mistake by an advocate, though negligent, may be accepted as a sufficient cause, ignorance of procedure

by an unrepresented defendant may amount to sufficient cause, illness by a party may also constitute sufficient cause.

However, the failure to instruct an advocate in time is not sufficient cause. as was held in *Andrew Bamanya v. Shamsherali Zaver, C. A Civil* Application No. 70 of 2001.

However, the courts have taken note of the fact that where there are 20 serious issues to be tried, then a court ought to grant an application of this nature.

See: Sango Bay Estates Ltd v. Dresdner Bank [1971] EA 17 and G M Combined (U) Limited v. A. K. Detergents (U) Limited S. C Civil Appeal No. 34 of 1995).

However, an application for enlargement of time will not be granted if there is inordinate delay in filing it.

## See: Rossette Kizito v. Administrator General and Others, S. C. Civil Application No. 9 of 1986 [1993]5 KALR 4.

The considerations which guide courts in arriving at the appropriate 30 decision in an application for the enlargement of time were outlined in the case of **Tiberio Okeny and Another v. The Attorney General and** two others C. A. Civil Appeal No. 51 of 2001. In that case, the following conditions were laid down which must be satisfied before any grant of an order for enlargement of time; and these are;

a. First and foremost, the application must show sufficient reason related to the liability or failure to take some particular step within the prescribed time. The general requirement notwithstanding each case must be decided on facts.

b. The administration of justice normally requires that substance of all disputes should be investigated and decided on the merits and that error and lapses should not necessarily debar a litigant from pursuit of his rights.

c. Whilst mistakes of counsel sometimes may amount to sufficient reason this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law.

- d. Unless the Appellant was guilty dilatory conduct in the instructions of his lawyer, errors or omission on the part of counsel should not be visited on the litigant. - e. Where an Applicant instructed a lawyer in time, his rights should not be blocked on the grounds of his lawyer's negligence or omission to comply with the requirements of the law...

Hon. Justice Twinomujuni in the above case went further to hold that it is only after "**sufficient reason**" has been advanced that a court considers, before exercising its discretion, whether or not to grant extension, the question of prejudice, or the possibility of success and such other factors.

$25$

$\mathsf{S}$

In the instant case the applicants' just cause is that they were not aware of $\mathsf{S}$ the judgement till they were served with a taxation notice and by this time the time for appeal had expired.

The record of proceedings indicates that on 6^th March, 2018 the defence case was closed in the absence of the defendants or their counsel after counsel for the defendants communicated to the Counsel for the plaintiff 10 that he had no more witnesses. Thereafter, a schedule for submissions was given to counsels and a judgment date was set for 30^th April, 2018.

On 30^th April, 2018, only the plaintiff was present with court noting that indeed submissions for both parties were on record. Accordingly, judgment date was set on $30^{th}$ May, 2018.

However, nothing is recorded to have happened on this date of 30^th May, 2018. The next date after 30^th May, 2018 was 6^th June, 2018 when the judgment date was again adjourned to 29^th June 2018 with only the plaintiff present.

- On 29^th June 2018 nothing happened with the judgment once more fixed 20 for 13^th July, 2018. Once again on 29^th June 2018 with only the plaintiff present, the matter was again adjourned to 31^st August, 2018 when the judgement was read in the presence of only the plaintiff, neither counsel was present. - From the record of proceedings and the dates extracted above it is clear 25 that the defendants/applicants were largely absent from court to the extent that their case was closed in their absence.

The plaintiff/respondent on the other hand showed interest in his matter and was always almost present at all times and for this matter was always aware of all dates set by court.

The applicant is basing this application on good cause on the ground that $\mathsf{S}$ they were ignorant of the date of judgment or even the judgment itself.

However, from the record of proceedings clearly that the applicants never showed any seriousness even during the hearing of the head Civil Suit 013 of 2014 for they absented themselves from the proceedings before they even closed their case. It is thus no surprise that they were not aware of

the judgment.

Even after they became aware of the judgment through the taxation notice dated 14^th of November 2018, it took them approximately five months to file this application for extension of time.

- I find that the conduct of the applicants during the hearing of the civil suit 15 and their delay in filing the application after they became aware of the judgment, unconscionable yet the respondent consistently had to wait for over four years to receive a decision on his claim against the applicants. Given the conduct of the applicants in the lower court allowing time within - which a party would appeal after their sitting on their rights after over four 20 years after a judgment had been delivered would indeed be a prejudice.

I am not satisfied with the argument of the applicant that they have any good cause within the meaning of the decision in **Banco Arabe Espanol** Vs Bank of Uganda 199 2 EA 22.

In fact, the record of the lower court and even of this court show that 25 applicants have shown such incompetent and inept conduct that a reasonable court would condemn outright given the unperturbed defending and the prosecuting of this application. Therefore, it would be unjust to allow an application of this nature where the party seeking remedy in couert has shown such high propensity of laziness and an "I 30 don't care attitude" to court proceedings and expect to at the same time

seek court's indulgence only after they are being threatened with taxation $\mathsf{S}$ of costs.

The behavior of the applicants is clearly that of an indolent and lethargic party. Such malignant conduct where parties take the court process lightly cannot be condoned.

Given the above conclusion, this application is found to lack merit and it 10 is dismissed with costs to the respondent.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

11^th January 2023

15